Keeping the judge happy

Provisional assessment (PA) is one of the less written about aspects
of the Jackson reforms, even though the paper only assessment of all bills worth
up to £75,000 applies to a
vast swathe of litigation.

The primary problem that
has emerged over the past 18 months is simply the backlog
in the courts dealing with PA. The practice direction states that ‘the court will use its best endeavours to undertake a provisional assessment within six weeks’, but this has proven wildly optimistic in many
parts of the country, with practitioners reporting that six months is more common than six weeks. It undermines the whole purpose of PA speeding up the process of determining costs.

Inadequate resourcing

This is not a criticism of the judiciary, but is simply a reflection of the pressure they were already under even before this heavy load of extra box work landed in their laps. As ever with our civil courts, I’m afraid it is a case of inadequate resourcing.

What we do not know is the extent to which PA has stymied negotiation and settlement. With the costs of going to PA capped at a maximum of £1,500, there are reasons on both sides to see PA as worth a punt – so why bother with the effort of trying to settle?

Annoying the judge is of course never a good idea, but at least if you are in front of them you can see what is happening and try to repair the damage. But with PA you have to take far greater care, a point made forcefully earlier this year at the Association of Costs Lawyers (ACL) conference by District Judge Marshall Phillips, who is the regional costs judge at Cardiff Civil Justice Centre.

He put forward a formidable list entitled ‘How to wind up your judge or not get what you want’, and it is worth repeating:

• ignore the practice direction;
• file points of dispute which are lengthy, repetitive and irrelevant;
• always challenge the retainer;
• ask for a copy of the conditional fee agreements (CFAs) even if no CFA was ever signed;
• suggest costs are disproportionate even if they’re not;
• always stress how simple a case was (despite the fact it had been allocated to the multi-track and listed for a three-day trial, and the paying party’s representative was a grade A fee-earner throughout);
• always fail to file precedent G and instead file one document with the points of dispute, and another document with the replies;
• never allow sufficient space for the judge to write their decision, however lengthy the points of dispute and/or reply;
• fail to file the sealed envelope containing the offers;
• if there are no such offers, fail to inform the court of this fact in your covering letter; and
• don’t lodge the documents in the order set out on the N258 but mix up the order just to make things more interesting for the judge.

The clear message is that you need to be succinct, relevant and focused on your important points – remember that judges are expected to complete this task in 45 minutes. A detailed opening narrative is a smart idea, as is a sensible part 36 offer. You may question how judges can properly do their job without sight of the file, witness statements and so on (in some courts at least), but we have to live with the system as it is.

There is provision in the rules for an oral hearing after the initial PA, but to avoid costs consequences you have to better your position by 20 per cent, which is a risk many will not be willing to take unless the judge has taken an extreme position.

Unknown performance

The frustration is that we simply do not know how well or badly PA is performing. The pilot that informed the decision to roll it out nationally from 1 April 2013 was itself not extensive – with just 119 cases monitored in its first year – and no further analysis has been done since.

PA is very much a work in progress as everyone continues to get used to it, but district judges are sensible people who understand the realities of practice, even from just the papers, and so it is perhaps noteworthy that most of
the complaints to date have focused on delays rather than outcomes. SJ

Sue Nash is chairman of the Association of Costs Lawyers